Two years after alarm bells started ringing over the misuse of Section 66A of the IT Act, the Supreme Court is questioning its validity. Wisely, the government has declined to defend the numerous “whimsical” arrests made under the law, an amendment hurried through Parliament by the UPA government in 2008. Far from whimsical, these arrests appeared to be attempts to suppress vocal public dissent on the internet by picking soft targets outside party politics — two young women, a university teacher, a cartoonist, a small businessmen, among others. The arrests backfired as the very social media they were accused of using to cause annoyance catapulted them to political celebrityhood.
“Annoyance” is only the first of the electronic sins that the offending section criminalises. A whole string of them follows: “inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”. Contrary to the norm in jurisprudence, none of these terms is defined in the IT Act. If the police are willing, a complainant’s perception of “inconvenience” or “danger” could alone secure an arrest. In 2012, West Bengal Chief Minister Mamata Banerjee read the word “vanish” in a political cartoon as a death threat and the teacher who shared it on Facebook found himself behind bars. The legal contest over Section 66A began shortly after it came into general use, in November 2012, when the Madras High Court was moved against the governments of Tamil Nadu and Puducherry following the arrest of a businessman who had tweeted about then cabinet minister P. Chidambaram’s son. Now, while the Central government has declined to defend problematic arrests made under Section 66A, it must defend the very validity of a problematic law.
Article 19(2) of the Constitution permits government to frame laws reasonably restricting the right to free speech, which the same article guarantees. The idea of reasonableness is commonly understood in law and is less liable to improper interpretation than the string of vague offences listed in Section 66A, which are easily misread. If the objective is the reasonable restriction of free speech, why can’t the government enact general curbs under Article 19(2)? Why is the mode of communication important? Interestingly, 66A came into prominence following the general mobilisation against corruption in 2011, which used social media to organise and baffle the government. Was the motive behind Section 66A only to contain social media, used by a digitally connected middle class in search of political agency? Then it is doubly problematic and must itself be contained.